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Front pay is an equitable remedy, an element of the "make whole" relief available to victims of employment discrimination. "Make whole" relief includes all actions necessary to make a victim of discrimination whole for the discrimination suffered, by placing the individual as near as possible in the situation he or she would have occupied if the wrong had not been committed. Albemarle Paper Co. v. Moody[1]. The remedy of front pay compensates a victim in situations where reinstatement or nondiscriminatory placement would be an available remedy, but is denied for reasons peculiar to the individual claim. The compensation of front pay makes the victim of discrimination whole generally until such nondiscriminatory placement can be accomplished. See Romero v. Department of the Air Force[2].

Numerous decisions of the Commission have recognized the Commission's authority to award front pay as a remedy, and have discussed the propriety of such an award under the particular facts of those cases. The Commission decisions discussed in this article were selected to illustrate the Commission's treatment of the front pay remedy.

Reinstatement or nondiscriminatory placement is preferred over the remedy of front pay. See Romero. However, front pay may be determined to be more appropriate in certain situations. The Court in EEOC v. Prudential Federal Savings and Loan Association stated that front pay should be awarded "when the employer has exhibited such extreme hostility that, as a practical matter, a productive and amicable working relationship would be impossible.[3]" The Commission in Finlay v. United States Postal Service,[4] and in earlier cases cited in Finlay, set out three circumstances in which front pay may be awarded in lieu of reinstatement: (1) Where no position is available; (2) Where a subsequent working relationship between the parties would be antagonistic; or (3) Where the employer has a record of long-term resistance to discrimination efforts.

The remedy of front pay may not be appropriate even where one of the above situations is present. An example of such a case is Finlay, above, in which the Commission determined that front pay is not appropriate where an appellant is unable to work. The agency found that sexual harassment of appellant had occurred. The agency awarded certain relief but rejected, among other items of relief, the award of front pay. Appellant had been unable to work as a result of the discrimination. Rather than awarding front pay, the agency in its final decision stated that it would assist appellant to return to work in another location with full seniority and all wage and step increases. The question on appeal was whether the agency's remedy award was full, "make-whole" relief. The Commission decided that the remedy of nondiscriminatory placement was not available because, based on the medical evidence, appellant was unable to return to work. Citing York v. Department of the Navy,[5] the Commission then decided that appellant was not entitled to an award of front pay. The Commission explained that an award of front pay requires that an employee be available to work. Since appellant could not work, she was unable to satisfy this requirement.[6] A similar result was reached recently in DeCamillo v. Department of the Treasury.[7] The Commission in that case ruled against a front pay award because appellant, due to a disabling medical condition, was unable to work. The Commission also noted that the ability to work requirement pertains regardless of the cause of the disabling condition. The Commission observed that the appellant could claim future pecuniary damages for wage loss, and directed the agency to determine the amount of compensatory damages payable to appellant.

An example of the second circumstance in which front pay may be appropriate, where there is antagonism between the parties, is found in Romero, above. Both coworkers and supervisors in that case exhibited substantial hostility toward appellant based on her national origin and her prior EEO activity. However, even though hostility was present, the Commission opted for the remedy of reinstatement, albeit under controlled conditions. The Commission based its decision on the fact that there had been a turnover in management since the discrimination occurred, and also on the fact that appellant desired reinstatement. The Commission also noted the agency's offer of reinstatement to a potentially favorable position in another location. The Commission directed the agency to prevent any contact between appellant and the discriminating personnel if appellant desired reinstatement to her former position.

Complainants have sometimes requested front pay in the belief that a position awarded by an agency is not appropriate relief. The Commission determined that a petitioner was not entitled to front pay in Todd v. Department of the Army.[8] The Commission in the appeal decision underlying this petition for enforcement had found that the agency's failure to select petitioner for a supervisory Visual Information Specialist position constituted race and sex discrimination and retaliation. The Commission had ordered retroactive promotion and back pay. By the time the petition for enforcement was filed, the agency had already provided the back pay and retroactive promotion. Petitioner, on extended leave at the time, was offered a supervisory Visual Information Specialist position, and entered into that position when he returned from leave. In his petition, petitioner contended that the position he was offered was not substantially equivalent to the position previously denied him, and that he was entitled to front pay. The Commission concluded that petitioner did not prove his claim that the position was not substantially equivalent. The Commission found that petitioner was not entitled to front pay because he was immediately placed in the position at issue upon his return from leave.

An earlier Commission decision illustrates a similar situation in which, because of the operation of the remedies of reinstatement and back pay, front pay was inappropriate. In Spicer v. Department of the Interior,[9] the agency had awarded appellant, an Area Psychologist, corrective relief for sexual harassment. The agency had awarded back pay from the date appellant was discriminatorily terminated to the date of its final agency decision, and reinstatement to a comparable position. Appellant rejected the agency's job offer, and on appeal requested additional relief, including front pay to the date she expected to sign a contract with a new employer. The appellate decision determined that appellant was not entitled to front pay because the agency reinstated her to a comparable Psychologist position where she would not be subjected to the hostile environment created by her former supervisor. In addition, the appellate decision tolled the back pay award as of the date appellant had received the agency's job offer. Appellant disputed both the back pay and the front pay determinations in a request to reconsider. The Commission in its decision found it unnecessary to address appellant's request for front pay because of its disposition of the back pay issue. The Commission determined that the agency's award of a comparable Psychologist position was insufficient, reasoning that the agency had provided no assurances against appellant being supervised by the discriminating officials. Therefore, the Commission ordered the agency to issue appellant a new offer of reinstatement containing the requisite specific assurances. The Commission also directed the agency to award appellant back pay through the date appellant is either reinstated, or declines the agency's job offer.

A request for front pay can also be affected by the type of appointment involved. In Turner v. Department of the Interior,[10] the Commission decided that appellant was not entitled to an award of front pay because her employment had been limited to a seasonal appointment. Appellant was a former seasonal Land Surveyor Technician when she filed a complaint of sexual harassment and retaliation regarding a number of actions by her supervisor. The record indicates that after appellant raised her allegations of harassment, the agency immediately reassigned the supervisor to another location. The agency also removed appellant from field work for the balance of her seasonal appointment, an action which appellant identified in her complaint as termination from her position. Her seasonal appointment ended in October 1993, and she stayed on as a volunteer for a few months. The agency then offered her another seasonal appointment to begin in July 1994. An EEOC Administrative Judge (AJ) after conducting a hearing on her complaint found that appellant had been subjected to sexual harassment and retaliation. With regard to the appropriate remedial action for the discrimination, the AJ found that because appellant had been employed in a seasonal appointment, and did not prove that she had been constructively discharged by the agency, she was not entitled to back or front pay. The Commission found the AJ's rationale for denial of those aspects of relief to be well stated, and adopted the rationale as its decision on the matter.

A distinction is to be made between front pay, which is an equitable remedy, and the loss of future earning capacity, which is in the nature of compensatory damages. The Commission noted that the two are not the same in Carpenter v. United States Department of Agriculture[11]. The parties had entered into an agreement to settle appellant's complaint of age and disability discrimination and retaliation. Appellant agreed to retire on disability when he entered into the settlement agreement, and the agency agreed to pay him a lump sum of $40,000 upon the effective date of his separation from employment. The agency also agreed to pay proven compensable damages not to exceed $150,000. In its subsequent determination on appellant's request for compensatory damages, the agency ruled that appellant was not entitled to future pecuniary damages. The agency asserted that the $40,000 lump sum provided in the settlement amounted to an award of front pay, and that no additional award for future pecuniary losses was provided for or justified. On appeal, the Commission agreed. The Commission stated that front pay is an equitable remedy and as such was not encompassed by the parties' agreement concerning compensatory damages. In contrast, an award for future pecuniary damages for the loss of future earning capacity concerns the effect that appellant's injury will have on his ability in the future to earn a salary comparable with what he earned before his injury.

[1] 422 U.S. 405 (1975).

[2] EEOC Appeal No. 01921636 (July 13, 1992).

[3] 763 F.2d 1166, 1172-1173 (10th Cir. 1985).

[4] EEOC Appeal No. 01942985 (April 29, 1997).

[5] EEOC Appeal No. 01930435 (February 25, 1994).

[6] In a separate discussion on the issue of compensatory damages, the Commission found appellant entitled to future pecuniary compensatory damages to compensate her for her future loss of pay and benefits. The Commission directed the agency to calculate the damages award to include wages, agency contributions to health benefits and life insurance premium, and agency contributions to retirement plans.

[7] EEOC Request No. 05980180 (July 30, 1998).

[8] EEOC Petition No. 04970025 (May 29,1998).

[9] EEOC Request No. 05940880 (November 8, 1996).

[10] EEOC Appeal No. 01956390 (April 27, 1998).

[11] EEOC Appeal No. 01945652 (July 17, 1995).